The Issue The issues to be resolved in this proceeding concern whether violations of Section 509.032, Florida Statutes, and Rule 61C-1.004(5), Florida Administrative Code, as well as Chapter 4A-3, Florida Administrative Code, had been committed by the Respondent in terms of two specific safety violations allegedly occurring at the Respondent's lodging establishment.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the operation of hotel or lodging establishments in accordance with Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes. The Respondent, at all times material hereto, has been licensed or otherwise subject to the Petitioner's jurisdiction. On September 28, 2001, and again on October 16, 2001, an inspector of the Division of Hotels and Restaurants (Division) inspected the Respondent's lodging premises. The Division inspector noted certain deficiencies at her first inspection and that those deficiencies where still outstanding and uncorrected at the end of her second inspection at that location. In light of the deficiencies noted at both inspections, the Division issued its Administrative Complaint on November 16, 2001, alleging that the fire extinguisher near Apartment Number One was in the "re-charge zone," meaning that it was inoperable on September 28, 2001, and was missing on October 16, 2001. The Complaint also charged that the balcony railing near Apartment Number Four was loose and, therefore, in an unsafe condition in violation of Rule 61C-1.004(5) and (6), Florida Administrative Code. In response, the Respondent testified that he does not live on the premises and that, although the fire extinguisher deficiency has occurred repeatedly, it is because children who are present on the premises keep discharging it. He testified that whenever it has been discharged he, or his maintenance man, immediately has it recharged by the Daytona Fire and Safety Company. Mr. Rampersad also testified that he did everything in his power to bring the railing up to proper code requirements by re-drilling holes and re-anchoring the railing in concrete. He contends that an "inspection supervisor" observed the railing and opined that it had been brought up to code, but there is no direct evidence of that observation. He established that, as of the time of the hearing, all necessary repairs to the railing had been made and that the fire extinguisher was charged and fully operable. He testified that at the time the fire extinguisher was missing upon the re-inspection date, found above, that it was at the service company being recharged.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Business and Professional Regulation, imposing a fine in the amount of $750.00; That the Respondent's license be suspended for six months, but with the suspension held in abeyance contingent upon timely payment of the administrative fine being received upon a schedule agreed to between the Respondent and the Director of the Division of Hotels and Restaurants. The failure to continue to make timely payments of the fine amount should result in imposition of the suspension of the Respondent's license; and That the Respondent be required to attend a Hospitality Education Program class under the auspices of the Petitioner within 60 days of the date of the final order herein and to provide satisfactory proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2003. COPIES FURNISHED: Milton Rampersad 1201 Kennedy Road, Apartment 19 Daytona Beach, Florida 32117 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is a rooming house located in Pensacola, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license numbers 2705932 for food service and 2705800 for operation of a rooming house issued by the Division. Russell Crowley is a Senior Sanitation and Safety Specialist employed by the Division. Mr. Phelan has a two- year degree in environmental technology. He has been employed by the Division for eight years. Prior to working for the Division, he was in the Air Force, Public Health Service, for 26 years. He also received training in laws and rules regarding public food service and lodging, and is a certified special fire inspector. Case Nos. 06-3292, and 06-3293 On February 28, 2006, Mr. Crowley conducted an inspection of Respondent's premises and issued a food service inspection report and a lodging service inspection report while on the premises. Harrison Anderson an employee of Respondent, signed for the inspection reports. During the February 28, 2006 inspection, Mr. Crowley observed six food service violations and four lodging violations and issued a warning that the violations must be corrected by March 28, 2006. Mr. Crowley conducted a call-back inspection on March 29, 2006, during which he observed that four of the violations noted on February 28, 2006 had not been corrected. At the time of the first inspection, Mr. Crowley observed that the fire extinguishers were out of date. During the call-back inspection, he again found the fire extinguishers to be out of date, in that they had last been inspected in April 2005. This is a critical violation because if a fire extinguisher is not inspected to be sure it is in proper working condition, it could malfunction causing a fire safety hazard. During the original inspection, Mr. Crowley also observed that the stove hood in the kitchen was not cleaned. This was listed as a violation because it is a vermin control issue. This is a critical violation because grease buildup in the stove hood system can cause a fire. This violation had not been corrected at the time of the call-back inspection. During the original inspection, Mr. Crowley observed that the hood suppression system in the kitchen was out of date. This had not been corrected at the time of the call- back inspection. Hood suppression systems should be inspected every six months. This is a critical violation because the hood suppression system is how grease fires are put out. Mr. Crowley also observed an accumulation of food debris on the kitchen floor and under the stove and refrigerator. This had not been corrected at the time of the call-back inspection. Another violation that Mr. Crowley found that had not been corrected is that the manager lacked proof of a food manager certification. This is a critical violation because a food manager who has received training in proper food handling procedures must be on the premises. Mr. Crowley gave Respondent a time extension of 60 days to correct this violation. Additionally, Mr. Crowley gave a 60-day time extension for a related violation, in that there was no proof of employee training in proper food handling procedures. A lodging violation that had not been corrected between inspections is that the central heat and air conditioning was inoperable. Mr. Crowley observed space heaters in some but not all rooms. The central air system was still inoperable on the call-back inspection and there were only four space heaters for 15 rooms. On June 6, 2006, Mr. Crowley made a call-back inspection of Respondent's facility and found that there still was no proof of anyone having received food manager training and no proof of employee training. Case No. 06-3294 During the March 29, 2006, call-back inspection of Respondent's facility, Mr. Crowley observed that no room rate schedule was filed with the Division and that no room rate was posted in each room or unit. He wrote an inspection report finding these two lodging violations, issuing a warning about these two violations, and notifying Respondent that the violations needed to be corrected by April 29, 2006. Mr. Crowley went back to Respondent's facility on May 5, 2006, and found that these violations had not been corrected at the time of the call-back inspection. His call- back re-inspection report noted that the owner stated that she sent the room rate schedule to the Division for filing, but that when he called to verify this, there was no record of Respondent's room rate schedule with the Division. In any event, the room rate schedule was not posted. Case Nos. 06-3698 and 06-3699 On April 11, 2006, Mr. Crowley again inspected Respondent's facility. As a result of this inspection, he wrote a lodging inspection report on which he noted nine violations. He noted on the inspection report a call-back date of April 12, 2006. On April 12, 2006, he returned to Respondent's facility to make a joint inspection with an inspector from another agency, the Agency for Health Care Administration. As a result of the April 12, 2006, inspection, he found two violations that had not been corrected: he observed an insufficient number of fire extinguishers and observed 10 live gnats in a resident's room. He also gave a 30-day time extension for the seven other violations found, indicating a call-back date of May 13, 2006. During the April 12, 2006 inspection, Mr. Crowley also observed an expired fire sprinkler inspection tag, indicating it had been last inspected on April 11, 2005. The inspection report again shows a call-back date of May 13, 2006. Mr. Crowley made a call-back inspection of Respondent's facility on June 6, 2006, and found two violations that had not been corrected from the April 2006 inspections: the smoke detector in the common area was not working and there was rotted wood in the restroom. The smoke detector not working is a critical violation; the rotted wood in the bathroom is not. Mr. Crowley did note in his report that the air conditioning/heating system was now working. On May 15, 2006, Mr. Crowley made a call back inspection and found that the fire sprinkler had still not been inspected since April 2005. This is a critical violation. Mitigation Ms. Finkley offered mitigating circumstances regarding some of the deficiencies noted by Mr. Crowley. Regarding the allegation that no food service manager had a certification, Ms. Finkley asserts that before the house was licensed to be a rooming house, it was an assisted living facility. She and others who had previously worked there had received training and were not aware they needed additional training when the facility became a rooming house. Further, Ms. Finkley took the training class on July 17, 2006. Regarding the allegation that the stove hood had a grease buildup, Ms. Finkley asserted that she did have the hood cleaned, and showed the inspector the receipt for the cleaning. Mr. Crowley disputes this and insists that had he been shown the receipt, he would have given her credit for having it. Mr. Crowley's testimony in this regard is more persuasive and accepted. Ms. Finkley explained that the house and floor are very old. Therefore, she feels that it was more the condition of the floor as opposed to uncleanliness. In any event, she has installed a new floor since Mr. Crowley's inspections. Regarding the room rates, Ms. Finkley insists that she mailed the room rates to the Division. It was returned to her from the Division within a couple of days after Mr. Crowley was there, and she then posted it. Her assertion in this regard is accepted as credible. Regarding the allegations about the fire extinguishers, Ms. Finkley asserted that she had taken two fire extinguishers to be inspected and tagged the day Mr. Crowley made his reinspection. According to Ms. Finkley, Mr. Crowley was still in the yard of the facility when she returned with the fire extinguishers and attempted to show them to Mr. Crowley. This apparently happened after he had written his report, as Mr. Crowley recalls passing her in the driveway as he was leaving. Her assertion in this regard is accepted as credible. Regarding the allegation about the smoke detector, Ms. Finkley asserts that it was brand new and had just been installed that day (the day of Mr. Crowley's inspection) by the maintenance man. She was not present during the inspection but retuned to the facility that day and found the smoke detector to be working. Her testimony in this regard is accepted as credible. Regarding the sprinkler system, the utility company was working on the road outside the facility and had cut the water line to the facility due to work being done on the day the inspector inspected the system. This is corroborated by Wesley Perdue's testimony and is accepted as credible. Again, this correction to the cited violation was made after the callback inspection. Wesley and Vicki Perdue lease the facility to Ms. Finkley and perform maintenance on the facility. Regarding the allegation about the rotten wood in the bathroom, they remodeled the entire bathroom including putting in new walls, a new commode, and a new vanity with a new sink. The Perdues also installed the new kitchen floor. According to Mr. Perdue, they repaired many things that were written up by Mr. Crowley after he had cited Ms. Finkley for the deficiencies, and he believes that the repairs were completed during the call-back time frame of Mr. Crowley's inspection reports. While Mr. Perdue believes this, the weight of the evidence is that repairs were not completed before Mr. Crowley's reinspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order that imposes an administrative penalty in the amount of $3,000, places Respondent under probation for a period of two months after issuance of the Final Order, and requires Respondent to attend a Hospitality Education Program. DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 28th day of December, 2006 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Fannie Finkley House of Love 5191 Zachary Boulevard Pensacola, Florida 32526 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether a civil penalty should be assessed against the Respondent under the facts and circumstances of Case No. 89-2966. Whether Respondent should be denied licensure renewal under the facts and circumstances of Case No. 89-4890. Whether a civil penalty should be assessed against Respondent under the facts and circumstances of Case No. 89-5238.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, Sacred Heart was operating an Adult Congregate Living Facility (ACLF) under either a Standard license or a Conditional license issued by the Department in accordance with Chapter 400, Florida Statutes. FINDINGS AS TO CASE NOS. 89-2966 AND 89-5238 In DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF) the Department and Sacred Heart entered into a stipulated settlement that was read into the record at the time of the final hearing (Petitioner's Composite Exhibit 1, Tab 6) on September 1, 1987 which provided: (a) that the Department was to perform a full survey (the same as an annual survey) of Sacred Heart beginning on September 1, 1987 and concluding on September 2, 1987; (b) that the parties would review the survey and establish a date for correcting any deficiencies noted; (c) that upon Sacred Heart timely correcting the noted deficiencies the Department would issue a renewal license for a period of one year from the date of issuance; (d) that substantial compliance of the noted deficiencies was a pre-condition to issuance of the renewal license; and (e) that Sacred Heart's failure to timely correct the noted deficiencies would result in the Department denying the renewal license. In accordance with the above-referenced stipulation the Department conducted a survey of the Sacred Heart facility on September 1 and 2, 1987. The survey was broken down into two parts: (a) operational deficiencies which are dealt with in Case No. 89-5238 and (b) fire safety standards deficiencies which are dealt with in Case No. 89-2966. That part of the survey concerning operational deficiencies was conducted on September 1 and 2, 1987. The Department noted 15 deficiencies of which 7 were Class III, 3 were part Class III and part Unclassified and 5 were Unclassified. Some of these deficiencies were required to be corrected by September 8, 1987, others to be corrected by October 2, 1987 and November 1, 1987 and the balance to be corrected by November 30, 1987. That part of the survey concerning fire safety standards deficiencies was conducted on September 2, 1987. The Department noted 18 Class III deficiencies which some were to be corrected by September 15, 1987 and the balance to be corrected by November 1, 1987. On December 1, 1987 the Department conducted a follow-up survey and noted that all operational deficiencies (Class III and Unclassified) listed on the September 1-2, 1987 survey had been corrected with the exception of the following: (a) ACLF 106 A(1), E(1), I, and J, Class III ; (b) ACLF 108F, Unclassified; (c) ACLF 109 H(18) and (19), Unclassified; (d) ACLF 111 A(1), Unclassified; and (e) ACLF 113(20) and (25), Unclassified. On December 8, 1987 the Department conducted a follow-up survey and noted that all of the fire safety standards deficiencies (Class III) had been corrected by Sacred Heart or withdrawn by the Department with the exception of ACLF 89, 107 A., B., C., F. and Q all of which had been partially corrected. Sacred Heart was operating with a conditional license with a termination date of October 7, 1987 at the time of the above-referenced stipulation and survey. This conditional license was extended until December 15, 1987. After the follow-up survey on December 1, 1987 and December 8, 1987 the Department notified Sacred Heart on January 6, 1988 that it was issuing Sacred Heart a Standard (regular) license with an effective date of December 16, 1987 without any conditions requiring Sacred Heart to correct the operational or fire safety standards deficiencies noted on the follow-up surveys of December 1 and 8, 1987. This standard license had an expiration date of October 7, 1988. Since the Department was aware of Sacred Heart's less than full compliance with correcting both the operational and fire safety standards deficiencies it can be assumed that the Department considered Sacred Heart in substantial compliance with correcting those deficiencies as required by the stipulation when it issued Sacred Hearth the Standard license without any conditions placed on the license requiring the correction of those deficiencies. Notwithstanding that it had issued a Standard license without any condition requiring Sacred Heart to correct any outstanding deficiencies, the Department conducted a follow-up survey on the operational and fire safety standards deficiencies on March 18, 1988 and March 25, 1988, respectively. On March 18, 1988 the Department conducted a follow-up visit of the annual survey conducted on September 1-2, 1987 and the follow-up visit of December 8, 1987 and found the following operational deficiencies that were noted in the September 1987 annual survey that had not been corrected: (a) ACLF 106(H) - Loose iron railing on entry of main building, Class III; (b) ACLF 109H (18) - cracked or peeling paint on wall in shower in room 18 of the main building, Unclassified; and (c) ACLF 113A (20) and (25) - stained or dirty ceiling panels in room 20 and 25 in the main building, Unclassified. Based on the follow-up survey of March 18, 1988 sanctions were recommended and approved for the uncorrected operational deficiencies. An administrative complaint was issued on March 16, 1989 and filed with the Division of Administrative Hearings on September 26, 1989 in Case No. 89-5238 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. On March 25, 1988 the Department conducted a follow-up visit on the September 1987 annual survey and the December 1987 follow-up visit and found the following fire safety standards deficiencies that had been noted in the September 1988 annual survey that had not been corrected: ACLF 89, 107 - A. all resident sleeping rooms that open into corridors did not have self-closing or automatic closing devices installed - this deficiency had been partially corrected in December 1987 and remained partially corrected in March 1988; B. all stair well doors (2-story building) did not have self-closing or automatic closing devices installed - partially corrected in December 1987 but neither door operational in March 1988; C. - all sleeping rooms, common areas, hallways, corridors, sitting or lounge areas, T.V. rooms, dining room, kitchen areas, laundry rooms, furnace rooms, Chapel and office areas adjoining the resident use areas did not have electronic smoke detectors wired into household electrical current (heat detector acceptable in kitchen) - this was only partially corrected on December 1987 as it was in March 1988; and F. all electrical panel boxes did not have each circuit breaker identified and labeled showing the area each circuit breaker protected - all corrected except in cottage #8 which was not corrected in March 1988. Based on the follow-up survey of March 25, 1988 sanctions were recommended and approved for the uncorrected fire safety standards deficiencies. An administrative complaint was issued on March 31, 1989 in Case No. 89-2966 and filed with the Division of Administrative Hearings on May 30, 1989 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. While the administrative complaint in Case No. 89-5238 indicates that deficiencies ACLF 109 and ACLF 113 are Class III deficiencies, both of the surveys and the Recommendation For Sanctions list these deficiencies as Unclassified . The operational and fire safety standards deficiencies noted by the Department in its September 1987 annual survey did exist. Furthermore, those operational and fire safety standards deficiencies noted in the follow-up visits of December 8, 1987 and March 18 and 25, 1988 as not being corrected, were uncorrected on the dates of the follow-up visits. FINDINGS AS TO CASE NO. 89-4980 On June 10 and 14, 1988 the Department conducted an annual survey of the Sacred Heart facility and noted the following deficiencies: (a) ACLF 63, 64, 66 - Unclassified; (b) ACLF 67, 71, 96A, 97A, Class III; (c) ACLF 106, 109, 89 (1-14) (maintenance problems) Unclassified; (d) ACLF 107A and B, 108 A-E, Class III; (e) ACLF 110A and B, 111 and 113, Unclassified; and (f) ACLF 26 and 42, Class III. On June 16, 1988 the Department conducted a follow-up of the annual survey conducted on September 2, 1987 and found the following fire safety standards deficiencies noted in the 1987 annual survey and the March 25, 1988 follow- up survey that had not been corrected: (a) ACLF 89, 107A - had not installed automatic or self-closing devices on all doors of residents' rooms that open into hallway or corridor; (b) ACLF 89, 107B - failed to install automatic or self-closing devices on all stairwell doors; and (c) ACLF 89 107C - failed to have electric smoke detectors wired into household electric current in furnace room, others noted in earlier annual survey and follow-up survey had been corrected. Additionally, the Department conducted an annual survey of the fire safety standards on June 16, 1988 and noted several deficiencies which were corrected at the follow-up survey of August 16, 1988 with the exception of: (a) having improper ashtrays in use in various areas of the main building and cottages; and (b) failure to install automatic fire extinguishing (sprinkler) system in the 2-story (main) building in accordance with Rule 4A-40.007(1), Florida Administrative Code. The August 16, 1988 survey also noted the following new fire safety standards deficiencies: (a) the failure to encase alarm wires in protective casings in north and south cottages; (b) failure to install additional alarm bells and switches or pull boxes in north cottages; (c) failure to have additional fire alarm bells installed on the first floor of 2- story main building; and (d) the failure to have pull box alarm systems properly installed according to Rule 4A-40.004, Florida Administrative Code. By letter dated August 9, 1988 the Department imposed a moratorium on admissions at the Sacred Heart facility effective August 8, 1988 in accordance with Section 400.415, Florida Statutes, for severe deficiencies including, but not limited to, inappropriate placement and retention of residents, substandard cleanliness of residents and substantial cleanliness of the facility. On August 16, 1988 the Department conducted another follow-up survey on the Sacred Heart facility and noted the following operational deficiencies: (a) ACLF 26, 27, 41 (1-6), 51, 52, 53, 58, 67, 71 (2-8), 96 (a-s), 98, 104, 105, 106 (a-o), 107 A-C, 109 A-H, 110 A-V and 111 (a-c), Unclassified; and (b) 71 (1), 93 A (1-7) and B (1-4), 97 A-E, 108 A-N, 112-115, 117 and 89 (a-m), Class III. On the follow-up survey of August 16, 1988 it was noted that the following operational deficiencies noted in the annual survey of June 10 and 14, 1988 had not been corrected: (a) ACLF 67; (b) ACLF 96 A & B (partially corrected); (c) ACLF 106, 109, 89 (1-6 partially corrected and 9 not corrected); (d) ACLF 107 A partially corrected; (e) ACLF 110 A-B; and (f) ACLF 111. On September 6, 1988 the Department notified Sacred Heart that its application for renewal of its license was being denied pursuant to Section 400.414(1)(2)(a)(b) and (d), Florida Statutes, because Sacred Heart did not comply with the standards for operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. The specific reasons given by the Department were the inappropriate placement and retention of residents and substandard cleanliness of the facility and, "the failure to: provide adequate resident care; meet life safety standards; provide social, leisure and recreational activities and to correct numerous physical plant deficiencies" as demonstrated by the March 18, 1988, June 10, 14, 1988 and August 16, 1988 area office visits and surveys. As a result of this denial letter Sacred Heart filed a petition with the Department requesting an administrative hearing which was assigned PDRL No. I 88-899 and referred to the Division of Administrative Hearings which assigned Case No. 88-5177 to this request. On October 13, 1988 the Department conducted a survey of the Sacred Heart facility for the purpose of reconsidering the moratorium issued on August 8, 1988. The October 13, 1988 fire safety standards survey noted the same deficiencies as were noted on the August 16, 1988 survey, none had been corrected. The operational deficiencies survey noted that some of the operational deficiencies noted on the August 16, 1988 survey had been corrected but that a good number had not been corrected. Additionally, the operational deficiency survey of October 13, 1988 noted a large number of new deficiencies. On February 8, 1989, the Department conducted another follow-up survey on both the operational deficiencies and the fire safety standards deficiencies. This survey noted that all fire safety standards deficiencies noted on October 13, 1988 had been corrected with the exception of installing an automatic fire extinguishing system. This survey also noted that a large number of the operational deficiencies noted on the October 13, 1988 survey had not been corrected and also noted several new deficiencies. Sometime before May 25, 1989 the Department and Sacred Heart entered into a Joint Stipulation wherein the Department would again place Sacred Heart on a 60 day conditional license upon the execution and return of the Joint Stipulation and lift the moratorium imposed on August 8, 1988. In return, Sacred Heart agreed to: (a) correct all remaining deficiencies arising out of the surveys of March 18, June 10 and 14, August 16, 1988 and February 8, 1989; (b) a full and complete survey utilizing the new survey manual; and (c) the results of this new survey being used to determine whether the license would be denied and the matter referred to the Division of Administrative Hearings for licensure denial proceedings de novo. On May 25, 1989 in accordance with the stipulation the Department lifted the August 8, 1988 moratorium that it had imposed on the Sacred Heart facility and issued Sacred Heart a 60-day Conditional license effective April 16, 1989 with an expiration date of June 15, 1989 In accordance with the stipulation and, the need to conduct an annual survey for licensure, the Department conducted an annual survey of the Sacred Heart facility on June 13-14, 1989. There were no repeat fire safety standards deficiencies noted in the June 1989 annual survey. However, the following new fire safety standards deficiencies were noted in the June 1989 survey: (a) ACLF 700-801A kitchen - cooking range and fry grill needs to be certified as to their safety, and cooking range and fry grill need thorough cleaning, removing flammable burnt and crusted food and grease from burners, well and cooking surface, and (b) ACLF 700-901B, main building - (1) sprinkler alarm bell not connected, (2) holes in ceiling and walls left by sprinkler contractor need to be sealed to prevent passage of toxic gases to other areas, (3) exit door (ground floor, south wing) does not swing outwardly in direction of escape travel, and (4) fire alarm "Pull Station" not loud enough to be heard throughout building on outside of building. These fire safety standard deficiencies are Class III deficiencies. The June 13-14, 1989 survey noted the following Class III operational deficiencies: ACLF 302 (ANC), ACLF 404-1001-1010, ACLF 504-507(4)-508 (a repeat deficiency), ACLF 602; ACLF 613, ACLF 617 (1-10), ACLF 700, ACLF 708, ACLF 800- 1010 (A-G, with G being a repeat deficiency), ACLF 803-806-808-1010 (A-F, with F being a repeat deficiency), ACLF 804-1010 (A-H, with H being a repeat deficiency), ACLF 810-811-1010 (A-B, with B being a repeat deficiency), ACLF 1002-1010, ACLF 1003-1010, ACLF 1005 and, ACLF 1105-1106 (A-B, with B being a repeat deficiency). Although several of the above operational deficiencies are listed as "repeat deficiencies", there is insufficient evidence to show that these exact deficiencies had been noted in an earlier annual survey or the earlier follow-up visits as deficiencies. The date for correcting the new fire safety standard deficiencies was July 14, 1989 and the date for correcting the operational deficiencies varied from June 14, 1989 thru August 14, 1989. The Department made no further visits to the Sacred Heart facility subsequent to the June 13-14, 1989 annual survey in an attempt to determine if Sacred Heart had corrected those deficiencies noted in the June 13-14, 1989 annual survey, notwithstanding that the Department had allowed Sacred Heart a period of time to correct these deficiencies. All of the deficiencies noted in the June 1989 annual survey were subsequently corrected within the time period prescribed in June 1989 annual survey report. All of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits conducted subsequent to March 25, 1988 did exist. Furthermore, all of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits beginning with the September 1987 annual survey and ending with the February 8, 1989 follow-up visit had been corrected before the June 1989 annual survey in accordance with the stipulation. On June 22, 1989 the Department entered a Final Order adopting the stipulation and ordering the parties to comply with its terms. Based on this Final Order the Department filed a Voluntary Dismissal in DOAH Case No. 88-5177 on July 10, 1989 and the file of the Division of Administrative Hearings closed on July 13, 1989. By letter dated June 29, 1989 the Department advised Sacred Heart that its application for renewal of its license which had expired on June 15, 1989 was denied pursuant to Section 415.103, Florida Statutes; Section 415.107(5)(b), Florida Statutes; Section 400.414(1)(2)(a)(b)(d) and 3, Florida Statutes and; Chapter 10A-5, Florida Administrative Code. The specific basis for the denial included but was not limited to: (a) the deficiencies cited during area surveys and follow-up with a September 2, 1987, March 18, June 10, June 14, June 16, August 12, October 13, 1988 and February 8, March 8, June 13 and June 14, 1989 which demonstrates continued non-compliance in correcting deficiencies (Section 400.414(d), Florida Statutes; (b) the August 8, 1988 moratorium imposed on admissions to the facility (Section 400.414(3), Florida Statutes; (c) failure to comply with the provisions of the joint stipulation in the DOAH Case No. 88- 5177, PDRL No. I-88-899 ACLF (Section 400.414(2)(d), Florida Statutes; and (d) the confirmed neglect of resident C. C. that occurred on September 15, 1988 (Section 400.414(2)(a), Florida Statutes). By letter dated August 7, 1989 Sacred Heart filed a petition with the Department requesting a formal hearing pursuant to Chapter 120, Florida Statutes. The petition, with attachments was referred to the Division of Administrative Hearings and assigned Case No. 89-4890. On August 11, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. C. N., Case No. 88-6455C wherein the Department denied the request of C. N. for expunction of the confirmed report of neglect involving C. C., a resident of the Sacred Heart facility at the time the incident of neglect occurred on September 15, 1988. Upon entry of the Final Order in this case Sacred Heart discharged C. N. and C. N. is no longer employed by Sacred Heart. On December 13, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. B. B. A., Case No. 88-6258C wherein the Department denied the request of B. B. A. for expunction of the confirmed report of neglect involving C. C., a resident of Sacred Heart at the time the incident of neglect occurred on September 15, 1988. B. B. A. at the time the incident of neglect occurred was a co-owner and was still a co-owner on the day of this hearing on August 6-7, 1990. The final order was on appeal to the District Court of Appeal on the day of hearing.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order in Case No. 89-4890 denying renewal of the ACLF license of Sacred Heart Retirement Villa, Inc. It is further recommended that the Administrative Complaints in Case Nos. 89-2966 and 89-5238 be dismissed. DONE and ORDERED this 15th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding of fact which so adopts the proposed finding of fact: 2 (3, 14, 17); 3 (6, 17); 4 (12, 17); 6-7 (28-30, 34); 9 (5, 17); 10 (6, 17); 11 (14, 17); 12 (19, 34); 15 (21, 34); 16 (24, 34); 18 (19, 34); 19 (24, 34); 22 (12, 13, 17); 24 (28-31, 34); 26 (25, 34); 28 (28-31, 34); 31 (24, 34); 32 (25, 34); 35 (28- 31, 34); 38 (20); 39 (29); 40 (35); 43 (36); 46 (38); 47 (39) and 48 (19). 2. Proposed findings of fact 1, 5, 8, 13, 14, 17, 21, 25, 29, 30, 34-37, 42, 44, 45 and 49 are unnecessary. 3. Proposed findings of fact 20, 23, 27 and 41 are not material or relevant. Specific Rulings of Proposed Findings of Fact Submitted by Respondent 1. Adopted in findings of fact 26 and 35 but modified. 2. Adopted in findings of fact 3, 4, 6, 12, 13, 14, 17-21, 24, 25, 28-34 but modified. Although the alleged deficiencies, moratorium and confirmed neglect report arose prior to the June 22, 1989 Final Order, there is no substantial competent evidence in the report to support the position that this resolved all matters before the Department at that time. Not necessary. 5.-6. Not supported by substantial competent evidence in the record. Not necessary Not supported by substantial competent evidence in the record. Adopted in findings of fact 33 and 34 but modified. Adopted in findings of fact 32 and 33 but modified. Adopted in finding of fact 29, but modified. Not material or relevant. A restatement of testimony and not a finding of fact. However, if considered a finding of fact it is not supported by substantial competent evidence in the record. COPIES FURNISHED: Michael O. Mathis, Esquire HRS Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 Kurt Andrew Simpson, Esquire Ocean South 3500 South Third Street Jacksonville, FL 32250 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the licenses of two public lodging establishments and against an individual alleged to have operated a public lodging establishment without a license, on the basis of allegations set forth in three separate Administrative Complaints.
Findings Of Fact At all times material hereto, the Respondent Fountain View Hotel (Fountain View) was a public lodging establishment, license number 60-00163-H, located at 5617 44th Street, West Palm Beach, Florida. Lawrence Joseph Vavala (Inspector Vavala) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist (Inspector). Catherine Driscoll (Supervisor Driscoll) was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Supervisor. On April 17, 2000, Inspector Vavala inspected the Fountain View and found numerous violations of public lodging service rules, all of which he marked on his lodging service inspection report of April 17, 2000. On April 17, 2000, when Inspector Vavala performed an inspection on Fountain View, he observed that the smoke detectors were inoperable in Apartments 3 and 4 in the front building. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that there were no portable fire extinguishers installed in the back building on either landing on either floor. Further, there was no fire extinguisher on the first floor, bottom landing, in the front building. In public lodging establishments, fire extinguishers are required to be within 75 feet of potential fire hazards. There was a fire extinguisher in the hallway on the second floor, but it had not been inspected since September 1994. Fire extinguishers are required to be inspected annually. These violations are critical in that they endanger the lives and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed evidence of rodent droppings in the water heater room on the south side of the building and cockroaches in the kitchen cabinets of Apartment 4. These are critical violations in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. During his inspection of the premises, Inspector Vavala observed electrical wiring in disrepair in Apartments 3 and 4. Wires were hung through a window out to the back porch, simply hanging by cord and socket. These are critical violations in that someone could be injured by the wiring. Further, in being exposed to the outside elements, it could cause shortage and fire. These are critical violations in that they endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed that the cooking stove was inoperable in Apartment 4 and the air conditioning units were inoperable in Apartments 3 and 4. This is a critical violation because tenants may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. Inspector Vavala also observed that the air conditioning units were inoperable in Apartments 3 and 4. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed the locks were inoperable on the kitchen door to the outside stairway in Apartment 3. This is a critical violation in that if the door could not be locked, an intruder could enter the premises and take property or physically harm an individual inside the apartment. On April 17, 2000, during his inspection of the premises, Inspector Vavala observed a broken window at the front door of the front apartment; the ceiling on top of the stairwell in the front of the building had a hole through the roof; a hole was in the stucco on the west side of the front building; a window was in disrepair on the west side of the front building; windows were boarded up on the west side of the building; stucco was missing on the south side of the front building; a window was broken on the lower floor of the front building on the south side; a window was in disrepair, and one window was broken on the lower floor of the front building on the east side; stucco was cracked on the north side of the exterior wall of the back building; the door frame was rotting at Apartment 6 in the back building; a window was broken on the north side of the back building at Apartment 6; there were holes in the wall and ceiling of the water heater room on the south side of the back building; a window was broken on the south side of the back building on the second floor; and the cross face on the west side of the front building and on the east side of the front building was not enclosed. Further, he observed excessive debris outside apartments around the building, a broken soda machine on the north side of the back building was falling over, and the refrigeration units in it could contaminate the ground water; he observed a rusting LP gas tank from a barbecue which, when left outside, will rust through the tank and release the gas in the air, which would endanger the health and welfare of persons in the area; there were cars lying around and the oil from those could contaminate the ground water. On April 17, 2000, in Apartment 4, Inspector Vavala observed kitchen cabinets in disrepair; tile was chipped, broken, and missing on the kitchen floor; there was a hole in the wall of the living area; the window operating assembly was in disrepair allowing the windows to either remain in a stuck open or stuck closed position; the clamps no longer worked on the window; the wood framing around a window air conditioner was rotting and had a hole below it; the plaster was cracked and chipping in the bathroom; there was a hole in the wall above the tub in the shower stall; a hole was in the wall behind the toilet in the bathroom; and the carpet was stained and unclean in the living area. The poor condition of the kitchen cabinets, the holes in the wall of the living room and bathroom, and the broken, chipped and missing tile could harbor rodents and bugs and nesting vermin. The rotting frame and hole in the wall underneath could allow the air conditioner, which was located on the second floor, to fall and endanger lives of persons beneath the window. Further, the hole in the wall allowed pests and vermin to enter the apartment. The window operating assembly which would not allow the windows to open was dangerous should there be a fire or other disaster blocking other exits to the apartment. The window operating assembly, which would not allow the windows to close, allows the outside elements to enter the apartment during inclement weather causing further deterioration to the apartments and personal belongings of tenants. The cracked and chipped plaster in the bathroom would not allow adequate cleaning which contributes to poor sanitation. The dirty carpet in the living area could be harboring insects, mold and mildew. The violations observed in Apartment 4 affect the health and safety of its tenants. On April 17, 2000, in Apartment 3, Inspector Vavala observed the ceiling stained in the back bedroom, reflecting leaking water damage; the ceiling plaster cracked in the back bedroom; broken and missing tiles in the kitchen, exposing plywood; kitchen cabinets that were in disrepair; an inoperative assembly in a shower stall window; all the window operating assemblies in the middle bedroom in disrepair; a closet door in disrepair in the middle bedroom; a sink was falling off the wall in the bathroom; there was a hole in the wall under the toilet in the bathroom; and backflow prevention was not provided on exterior hose bins. The violations observed in Apartment 4 endangered the health and safety of its tenants. On April 17, 2000, Inspector Vavala observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, an Administrative Complaint was issued against the Respondent Fountain View Hotel which was docketed as Case No. 2-00-185 before the Division of Hotels and Restaurants, and as Case No. 00-2949 before the Division of Administrative Hearings. On April 8, 1999, one year prior to the violations enumerated in paragraphs 5 through 15 above, Supervisor Driscoll and Inspector Paul Landmann, inspected the same Fountain View Hotel described above. Numerous violations observed during the April 8, 1999, inspection were still not corrected on April 17, 2000. On February 23, 2000, Supervisor Driscoll made a follow-up inspection of the same Fountain View and found numerous violations of public lodging service rules, all of which she marked on the lodging service inspection report of February 23, 2000. On April 8, 1999, the Petitioner issued an Administrative Complaint against Respondent Joseph Sansalone d/b/a Fountain View Hotel (Sansalone) which was docketed as Case No. 2-99-79 before the Division of Hotels and Restaurants, and as Case No. 00-3040 before the Division of Administrative Hearings. At all times material hereto, Respondent Lamplighter Hotel & Apartments (Lamplighter) was a public lodging establishment, license number 60-00167-H, located at 433 40th Street, West Palm Beach, Florida. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala, observed that there were no fire extinguishers located anywhere on the premises. This violation is a critical violation because it endangers the life and safety of individuals living in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed rodent droppings in an upstairs apartment in the back building and in the storage shed adjacent to the back building. This is a critical violation in that disease is spread in this manner which endangers the health and safety of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that there was no cover on the wall socket at the top of the stairs in the front building, and that cover plates were missing on the electrical sockets on the outside receptacle on the outside of the front area. This violation is critical because the health and safety of children are endangered because children could stick their fingers in the outlets and be electrocuted. Further Inspector Vavala observed a soda machine plugged into an outlet on the outside which was exposed to the elements, which could also be a potential danger to the health and welfare of persons in the vicinity. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed that the stairway in the rear of the building and the back building on the east side was in disrepair. These are critical violations because it would not be safe to evacuate the rear building from the stairwells, in case of fire or other emergency. On April 17, 2000, during his inspection of the Lamplighter, Inspector Vavala observed windows broken on the first and second floors of the front building on the south side; broken windows on the first and second floor of the front building on the east side; a broken window on the lower floor of the front building on the north side; a broken window on the door to the downstairs apartment in the back building; and a broken window on the east side of the back building on the second floor. These are violations because there is sharp glass exposed and no protection from the outside against vermin or the elements. He also observed stucco falling off the exterior wall of the front building on the north side; doors falling off the storage shed at the back of the building, adjacent to the living establishment, which harbored vermin; and a hole in the roof of the storage shed attached to the back of the building. The crawl space under the front building on the south side and under the front building on the north side was not enclosed; screens were ripped on the north side of the front building on the first floor and on the west side of the front building, which would allow insects to enter the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed a second floor hurricane shutter broken in the down position. This broken shutter would not allow evacuation through the window in case of fire or other emergency. On April 17, 2000, during his inspection, Inspector Vavala observed a door missing at the upstairs apartment on the back building, and the ceiling was falling in the kitchen and family room in an upstairs back apartment. The apartment appeared to be unoccupied; however, it would endanger the health and welfare of the tenants if it was occupied. Further, the missing door would allow children playing in the area to enter the apartment where the ceiling is falling, which could result in serious injury to a child. On April 17, 2000, during his inspection, Inspector Vavala observed an excessive amount of debris in and around the premises, including a refrigerator in an unused condition that still had the door attached which could be a hazard to children that lived in the establishment. On April 17, 2000, during his inspection, Inspector Vavala observed inoperable kitchen appliances located in the upstairs back building. These are critical violations because individuals may bring in propane or charcoal stoves to prepare food which would be a fire hazard and could endanger the safety and lives of individuals residing in the public lodging establishment. On April 17, 2000, during his inspection, Inspector Vavala observed that lighting was not provided in the hallway staircase in the front building. This is a critical violation because the unlighted area endangers the health and safety of tenants of the establishment. On April 17, 2000, Inspector Vavala also observed that the establishment was operating without a new license in 1998, 1999, and 2000. On May 2, 2000, the Division issued an Administrative Complaint against Respondent, Lamplighter Hotel & Apartments, which was docketed as Case No. 2-00-186 before the Division of Hotels and Restaurants, and as Case No. 00-2950 before the Division of Administrative Hearings. The Lamplighter Hotel & Apartments, located at 433 40th Street, West Palm Beach, Florida, and the Fountain View Hotel, located at 516 44th Street, West Palm Beach, Florida, are owned by Americorp Mortgage Co., Inc., whose president is Joseph D. Sansalone.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Hotels and Restaurants issue a final order to the following effect: Concluding that the Respondent Fountain View Hotel is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Fountain View Hotel consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Lamplighter Hotel & Apartments is guilty of the violations observed during the inspection of its premises on April 17, 2000, as described in the foregoing Findings of Fact and Conclusions of Law, and imposing a penalty on the Respondent Lamplighter Hotel & Apartments consisting of an administrative fine in the amount of $5,000.00 and the revocation of its license. Concluding that the Respondent Joseph Sansalone is guilty of operating a public lodging establishment at the premises of the Fountain View Hotel during April of 1999 without a then-current license for that establishment, and imposing a penalty on the Respondent Joseph Sansalone consisting of an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 18th day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2001.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Office of the State Fire Marshall is the governmental entity responsible for regulating fire safety in Florida, including the installation, maintenance, and inspection of fire protection systems. Section 633.01, Florida Statutes (2000). Mr. Cabrera is currently licensed by the State Fire Marshall as a Class C and D fire equipment dealer (Class 0703 and 0704) and as a fire extinguisher and preengineered systems permittee (Class 0903 and 0904).2 At the times material to this proceeding, Mr. Cabrera was issued preengineered systems permit number 435249000198. At the times material to this proceeding, Mr. Cabrera was the qualifier for A Fire Prevention Company, was authorized to act for the business organization in all matters connected with the business, and was required to supervise all activities undertaken by A Fire Prevention Company. A Fire Prevention Company has been in business since 1998. Prior to this time, a company referred to as "South Florida Fire" employed Mr. Cabrera. Mr. Cabrera currently holds, and, at the times material to this proceeding, held jointly with A Fire Prevention Company, a certificate qualifying A Fire Prevention Company to engage in business as a fire equipment dealer. At the times material to this proceeding, A Fire Prevention Company and Mr. Cabrera engaged in the business of servicing, repairing, recharging, testing, inspecting, and installing fire extinguishers and preengineered fire suppression systems. At the times material to this proceeding, Banner Beef and Seafood operated an industrial food processing facility in Miami, Florida. In the facility, meat and seafood moved through an industrial deep fat fryer on a conveyor belt and were then frozen, packaged, and sold for resale. An oil-heating unit, located in an alcove off the room containing the deep fryer, was attached to but separate from the deep fryer, and hot oil moved from the oil-heating unit through a filter into the deep fryer. The oil-heating unit held 200 gallons of oil, which was heated to 460 degrees Fahrenheit before flowing into the deep fryer. The oil-heating unit was made of stainless steel, with a stainless steel lid. The oil-heating unit was protected by a Kidde Sentinel HDR 25DC, DOT E-7042-360-K, Serial #33996, ("Kidde HDR 25DC") preengineered dry chemical fire protection system. On June 19, 2000, approximately three months after Mr. Cabrera performed a semi-annual inspection and maintenance of the Kidde HDR 25DC system, a fire originating in the oil- heating unit destroyed much of the Banner Beef facility. The Kidde HDR 25DC system was probably installed at Banner Beef in or around 1981. Mr. Cabrera was not involved in the installation of the system, but he began inspecting and maintaining the system approximately ten years before the fire. He occasionally performed the semi-annual inspection and maintenance of the Banner Beef system when he was employed by South Florida Fire, and he performed all of the semi-annual inspections and maintenance subsequent to March or July 1998, after he left South Florida Fire and established A Fire Prevention Company. Mr. Cabrera completed an inspection report and an invoice each time he inspected the Kidde HDR 25DC system. Mr. Cabrera was, however, able to produce to the State Fire Marshall only an invoice for a semi-annual inspection on October 5, 1998; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on April 12, 1999; an invoice and "Range Hood Inspection Report" for a semi-annual inspection on September 27, 1999; and an invoice for a "semi-annual inspection and maintenance" on March 15, 2000. The Kidde HDR 25DC is a preengineered system, which means that components manufactured by Kidde were put together into a system designed to protect against a particular hazard. Kidde publishes a manual, bulletins, and memoranda that specify how the Kidde HDR 25DC system is to be installed, serviced, repaired, maintained, tested, and inspected. The Kidde HDR 25DC system was submitted to the Underwriters Laboratory ("UL") for testing. The system was found to be effective and to operate as specified, and the system and the manual for the system received UL approval. Once the system and manual received UL approval, the components of the system could not be changed except in accordance with the UL listing and the approved manufacturer's specifications. The Kidde HDR 25DC system uses a dry chemical as a fire suppressant. The NFPA Standard 17 contains requirements for the installation, maintenance, operation, and care of dry chemical fire suppression systems. The Kidde HDR 25DC system is approved by the UL to protect commercial cooking installations, specifically hoods, ducts, and cooking appliances. Cooking appliances are classified into two categories in the manufacturer's specifications, surface appliances and broilers; deep fryers are considered surface appliances. Commercial cooking installations are used in food preparation areas of restaurants. The oil-heating unit and deep fryer used by Banner Beef are considered industrial appliances because they were designed to process a high volume of food to be sold for resale rather than to be consumed on the premises. The Kidde HDR 25DC system was composed of several components, including a cylinder containing dry chemical fire suppressant under 360 pounds of pressure; a valve assembly attached to the cylinder; a manual release mechanism; an elbow mounting bracket that connected the cylinder to discharge piping; a nozzle attached to the discharge piping through which the dry chemical fire suppressant would be discharged on the hazard protected by the system; a fusible link designed to melt at a specified temperature; a control head, with a control head cover, that was attached to the cylinder valve assembly; cables running from the fusible link to the control head; electrical metal tubing protecting the cables; and corner pulleys that allowed the cables to change direction at a 90-degree angle. The Kidde HDR 25DC system was designed so that, when the fusible link melted, the cables would release, causing the system to actuate and discharge the dry chemical fire suppressant. Banner Beef's 200-gallon oil-heating unit protected by the Kidde HDR 25DC system was located in an alcove opening off of a larger room that housed the deep fryer. The cylinder containing the dry chemical fire suppressant was mounted on the outside wall of oil-heating unit, at the far end of the alcove, only a few inches away from oil that was maintained at 460 degrees Fahrenheit when the oil-heating unit was in operation. The oil-heating unit was turned off at the end of each workday, and the cylinder was regularly exposed to a cycle of high temperatures when the unit was in operation and cooler temperatures when it was not. Because it was attached to the hazard it was intended to protect, the cylinder would be exposed to any fire that originated in the oil-heating unit, and, in fact, the exterior of the cylinder at Banner Beef was damaged by the fire and covered in grease when it was inspected after the fire. NFPA Standard 17-8, Section 3-8.3, 1994 edition,3 specifies that "[t]he dry chemical container and expellant gas shall be located near the hazard or hazards protected, but not where they will be exposed to a fire or explosion in those areas." NFPA Standard 17-8, Section 3-8.3.1, provides that "[t]he dry chemical container and expellant gas assemblies shall be located so as not to be subjected to severe weather conditions or to mechanical, chemical, or other damage." The location of the cylinder at Banner Beef was not consistent with these NFPA requirements. A manual release handle, or manual pull station, is used to manually actuate the Kidde HDR 25DC system. At Banner Beef, the manual release handle was located on the far end of the oil-heating unit, at the top of the dry chemical cylinder and next to the controls used to operate the oil-heating unit. The means of exiting the alcove containing the oil-heating unit was through the room containing the deep fryer, although Banner Beef advised Mr. Cabrera that someone was always standing at the controls of the oil-heating unit whenever the unit was in operation. NFPA Standard 17-8 provides in pertinent part: 3-7 Operation and Control of Systems 3-7.1 Methods of Actuation. Systems shall be provided with both automatic and manual means of operation. 3-7.1.1 Operation of any manual actuator shall be all that is required to bring about the full operation of the system. At least one manual actuator shall be provided for each system. * * * 3-7.1.3 At least one manual actuator shall be located no more than 5 ft (1.5 m) above the floor and shall be convenient and easily accessible at all times, including the time of fire. Although only one manual actuator was required, the location of the manual release handle was not consistent with NFPA Standard 17-8, Section 3-7.1.3. The date of manufacture was stamped into the metal of the cylinder containing the dry chemical fire suppressant. The system's serial number and a United States Department of Transportation exemption code, DOT-7042, were also stamped into the metal of the cylinder. The Kidde Guidelines for Hydrostatic Retest & Qualification of Kidde Models HDR, IND, WHDR, and DRS- 700 System Cylinders provides that "[d]ry chemical and wet chemical agents, when super-pressurized with nitrogen, are classified as hazardous materials and must be shipped in DOT approved cylinders (containers). The United States Department of Transportation has jurisdiction during cylinder manufacturer, testing, marking, retest and shipment." According to the information contained in the Guidelines, Kidde cylinders manufactured under the DOT E-7042 exemption must be hydrostatically tested, using "the water jacket volumetric expansion method or the direct expansion method," at least every 12 years by a retester authorized by the United States Department of Transportation. According to the Guidelines, after the hydrostatic retest, the federal Department of Transportation requires that the cylinder must be stamped, "'plainly and permanently,'" with a marking that includes the date of the retest and the designation "3AL"; such a stamp is usually imprinted into the metal of the cylinder. The Guidelines include a warning, identified as such and set off from the rest of the text, that provides: "Use of pressure sensitive hydrostatic test labels, in lieu of stamping the cylinder, DOES NOT comply with the DOT requirements." (Emphasis in original.) Because the cylinder installed with the Kidde HDR 25DC system at Banner Beef was manufactured in 1981, the cylinder should have been hydrostatically tested in 1993. The cylinder did not, however, bear a permanent stamp with the "3AL" designation and the date of a hydrostatic test. Mr. Cabrera nonetheless reported on the Range Hood System Report dated April 12, 1999, that the system had been hydrostatically tested in April 1998, and he reported on the Range Hood System Report dated September 27, 1999, that the system had been hydrostatically tested and recharged in 1998. Mr. Cabrera obtained this information from labels carrying the name of South Florida Fire that were affixed to the outside of the cylinder; a few remnants of the labels remained on the outside of the cylinder after the fire. Pursuant to the federal DOT requirements and the manufacturer's specifications, Mr. Cabrera could not rely on these labels as proof that the cylinder had been subjected to hydrostatic testing. An examination of the cylinder after the fire revealed that the outlet valve on the cylinder and the elbow mounting bracket attached to the valve were completely blocked by a caked, rock-hard white substance, and the area around the cylinder's relief valve was also coated with white powder. In addition, there were chunks of hardened white powder loose in the discharge piping that connected the cylinder to the nozzle inside the oil-heating unit, although the discharge piping was not blocked. The white powder was identified as dry chemical fire suppressant, which had discharged from the cylinder but had not been discharged through the nozzle into the oil-heating unit because of the complete blockage of the valve outlet and elbow mounting bracket. Finally, there was a residue of what appeared to be grease in the discharge piping connected to the elbow mounting bracket. The manufacturer's specifications require that, at the semi-annual inspection of the Kidde HDR 25DC system, the person providing the maintenance should "[c]heck the discharge piping for obstructions. Remove cylinder and valve. Blow out piping with clean dry air or nitrogen." Mr. Cabrera blew out the piping with nitrogen to clear obstructions each time he performed a semi-annual inspection of the Banner Beef system. The discharge piping was clear when he completed the semi-annual inspection and maintenance on March 15, 2000. In the Banner Beef system, approximately six inches of discharge piping ran from the elbow mounting bracket through the exterior wall of the oil-heating unit, where it emerged just above the level of the oil when the oil-heating unit was full. The discharge nozzle for the system was attached to a portion of the pipe that extended a few inches into the oil-heating unit, where it would be exposed to grease splatter. The male coupling on the discharge nozzle should have threaded into a female coupling in the pipe. However, the inside of the pipe was not threaded to receive the nozzle, and it appeared that the person installing the system had "screwed" the nozzle into a smooth pipe. Because the seal was not tight, grease had accumulated on the threads of the nozzle, and the nozzle might have blown off if the system had actually discharged. There are four nozzle configurations available for the Kidde HDR 25DC system, two of which are relevant to this proceeding: The SP-2 nozzle is designed to protect the plenum4 and exhaust duct of a commercial cooking installation; the SW-2 nozzle is designed to protect surface cooking appliances. One SP-2 nozzle was used with the Kidde HDR 25DC system at Banner Beef, which was inconsistent with NFPA Standard 17-6, Section 2- 3.1, which requires that "[d]ischarge nozzles shall be listed for their intended use," and with the manufacturer's specifications for the system. First, there is no recognized nozzle configuration for the system using only one SP-2 nozzle. Second, the SP-2 nozzle was not appropriate for the Banner Beef system: Deep fryers are classified in the manufacturer's specifications as surface appliances, and the proper nozzle was the SW-2 nozzle. The discharge pattern of the SP-2 nozzle is horizontal, and, had the dry chemical fire suppressant actually been discharged through the nozzle into the oil-heating unit, the dry chemical would have blown across the surface of the hot grease; the SW-2 nozzle is designed to be installed above the appliance, so that its discharge pattern is vertical, with the spray distributed over the surface of the oil. Protective grease covers are required by the manufacturer's specifications and by NFPA Standard 17-6, Section 2-3.1.4, which provides: "Discharge nozzles shall be provided with blowoff caps or other suitable devices or material to prevent the entrance of moisture or other environmental materials into the piping. The protective device shall blow off, open, or blow out upon agent discharge." When Mr. Cabrera inspected the Banner Beef system in March 2000, a grease cover protected the discharge nozzle, but, after the fire, no grease cover for the nozzle could be located. In addition, an examination of the nozzle and discharge piping after the fire revealed grease build-up on the inside of the nozzle and in the discharge piping. Protective nozzle covers are easily lost; Mr. Cabrera had advised Banner Beef to call him if they needed a replacement cover, but he was never asked for a replacement cover. To the best of Mr. Cabrera's recollection, there was always a grease cover on the nozzle whenever he conducted his inspections of the system. A fusible link is designed to melt at a specific temperature, releasing cables that run from the fusible link to a control head attached to the dry chemical cylinder; this is the means by which the system is actuated. The fusible link of the Kidde HDR 25DC system at Banner Beef was located in the duct venting the oil-heating unit to the roof. The invoice for the September 27, 1999, semi-annual inspection at Banner Beef reflects that Mr. Cabrera replaced the 500-degree fusible link in the Kidde HDR 25DC system. He used the 500-degree link because the oil-heating unit heated the oil to 460 degrees Fahrenheit. The manufacturer's specifications provide that "[t]he fusible link assembly . . . is used to detect excessive temperatures in the area above cooking appliances and in the duct. The actuation temperature is 360ºF (182ºC). For higher temperatures use a 500ºF quartzoid bulb, or fusible link." The manufacturer's specifications also provide: The exposure temperature is the maximum temperature to which a fusible link may be exposed for any period of time, no matter how short. After reaching the exposure temperature, the link will eventually release even though it may never reach the rating temperature. WARNING: To avoid accidental system discharge, a temperature survey must be made of all locations where the fusible link will be installed. Links must have an exposure temperature rating above the maximum peak survey temperature. The maximum exposure temperature for any fusible link is 300ºF. If the peak survey temperature is above 300º F, use a quartzoid bulb link. (Emphasis in original.) Only two fusible links were available for the Kidde HDR 25DC system, a fusible link with a rating temperature of 350 degrees Fahrenheit and a maximum exposure temperature of 300 degrees Fahrenheit and a quartzoid bulb, also referred to as a fusible link, with a rating temperature of 500 degrees Fahrenheit and a maximum exposure temperature of 475 degrees Fahrenheit. The exposure temperature at the location of the fusible link is not known, but the convected heat in the duct over the oil-heating unit, where the fusible link was installed, would not have reached the 460-degree temperature of the oil. However, the fusible link was installed only six inches above the maximum level of the oil in the oil-heating unit, and, had the 350-degree fusible link been used, it would have continually actuated the system. Pursuant to the manufacturer's specifications, the fusible link on the system should have been mounted using Kidde fusible-link brackets. The fusible link installed on the Banner Beef system was housed in a welded metal bracket fabricated by whoever installed the system. The fusible link is connected to the system's control head by a system of cables. The manufacturer's specifications require that the fusible link be attached to the cables using Kidde cable crimps crimped with a Kidde crimping tool. Mr. Cabrera did not use either a Kidde cable crimp or a Kidde crimping tool when he installed the new fusible link on the Banner Beef system during the September 27, 1999, inspection. The manufacturer's specifications require that the cables connecting the control head to the fusible link be "housed and protected by 1/2-inch electrical metal tubing." The portion of the cable running on the outside of the oil-heating unit, from the control head mounted near the cylinder into the exterior wall of the oil-heating unit was housed in electrical metal tubing; that portion of the cable running inside the oil- heating unit, from the fusible link to the exterior wall of the oil-heating unit, was not housed in electrical metal tubing but was left bare. According to the manufacturer's specification, all cable in the Kidde HDR 25DC system must run either horizontally or vertically. Consequently, corner pulleys are used to make 90-degree changes in direction. Three corner pulleys were used in the Banner Beef system; one was manufactured by Kidde, but two were manufactured by Pyro-Chem. In addition, the first corner pulley was clogged with grease, indicating that the system was not properly maintained. The cables leading from the fusible link are attached to a control head, and the system actuates when the fusible link melts and the cables are released. A cover plate protects the control head, and is attached to the control head with five screws. Kidde Field Memo #84-8, provides as follows: When installing the cover plate on any preengineered system control head, remember to install all five cover screws. The fifth screw that attaches to the hex post just above the local manual release handle is important for the stability of the cover plate when operating the handle. Leaving out the fifth screw could cause movement of the cover plate and render the local manual release handle inoperative. . . . Three of the five screw holes on the control head cover plate recovered from Banner Beef were covered with grease; only two of the five screw holes were clean. This indicates that the cover plate was attached to the control head by only two screws at the time of the fire. Mr. Cabrera did not note any discrepancies or deficiencies in the Kidde HDR 25DC system installed at Banner Beef in the inspection reports that he completed after his April 12, 1999, and September 27, 1999, inspections, which were the only reports provided to the State Fire Marshall and introduced into evidence at the final hearing. In these two reports, Mr. Cabrera checked the "Yes" boxes for the following items, among others: All appliances properly covered w/ correct nozzles System installed in accordance w/ MFG UL listing Inspect cylinder and mount Clean nozzles Check fuse links and clean Piping and conduit securely bracketed System operational & seals in place Clean cylinder and mount Mr. Cabrera signed the two reports, thereby certifying that "[o]n this date, the above system was tested and inspected in accordance with procedures of the presently adopted editions of NFPA Standard 17, 17A, 96 and the manufacturer's manual and was operated according to these procedures with results indicated above." The licensure files maintained by the State Fire Marshall for A Fire Prevention Company indicated that the company's insurance policy with Frontier Insurance Company expired on March 25, 2000. Mr. Cabrera testified, however, that the company did have insurance at the time of the fire, and this testimony is unrefuted. Summary The State Fire Marshall's expert witnesses disagreed as to whether the system could have controlled the fire had it functioned properly. They each conceded, however, that all components of the system functioned perfectly and actuated the system. They attributed the sole cause of the system's failure to the blockage in the valve outlet and elbow mounting bracket that prevented the dry chemical fire suppressant from discharging out of the cylinder. The State Fire Marshall's experts and Mr. Cabrera agreed that the cause of the blockage was dry chemical in the cylinder valve assembly and elbow mounting bracket that had hardened into a rock-hard substance. All of the State Fire Marshall's experts and Mr. Cabrera agreed that the chemical hardened as a result of its coming into contact with a significant amount of moisture and/or grease. No one, however, provided a satisfactory explanation of the time within which the chemical would have hardened after it came into contact with the moisture and/or grease. In Mr. Cabrera's opinion, the blockage was caused when grease and/or moisture entered the system at the time of the fire and caused the dry chemical to immediately harden. On the other hand, the State Fire Marshall's expert witnesses opined that the moisture and/or grease causing the blockage of the cylinder valve outlet and elbow mounting bracket did not necessarily accumulate in the system over an extended period of time but, rather, could have been introduced into the system all at once. They also agreed that the dry chemical would harden gradually over time and that the blockage was probably present at the time Mr. Cabrera performed the March 2000 inspection. However, none of the State Fire Marshall's experts provided a persuasive basis to support a finding that the blockage had been present in the system at the time Mr. Cabrera inspected the system in March 2000, and the evidence is, therefore, insufficient to establish with the requisite degree of certainty that Mr. Cabrera should have discovered the blockage when he performed the inspection and maintenance in March 2000. The evidence presented by the State Fire Marshall is likewise not sufficient to establish that Mr. Cabrera deviated from the requirements of the manufacturer's specifications by installing a 500-degree fusible link in the system in September 1999. The evidence presented by the State Fire Marshall is, however, sufficient to establish clearly and convincingly that the Kidde HDR 25DC preengineered fire protection system installed at Banner Beef was not designed to protect an industrial oil-heating unit containing approximately 200 gallons of hot oil, that the system was not installed in accordance with the manufacturer's specifications, that the system contained parts that were not manufactured by Kidde, that the system was not properly maintained with respect to the build-up of grease in and around the discharge nozzle and in the corner pulleys, and that Mr. Cabrera did not use the appropriate crimp and crimping tool when he replaced the fusible link in September 1997. The evidence presented by the State Fire Marshall is also sufficient to establish clearly and convincingly that Mr. Cabrera did not provide the State Fire Marshall with proof of insurance subsequent to March 25, 2000, although the evidence is insufficient to establish that he did not, in fact, have insurance coverage subsequent to that time. Finally, the evidence presented by the State Fire Marshall is sufficient to establish with the requisite degree of certainty that the reports Mr. Cabrera prepared following his semi-annual inspections in April and September 1999 did not accurately reflect the condition of the system and did not include a statement of the system's deficiencies. In addition, Mr. Cabrera's failure to provide the State Fire Marshall with copies of the inspection reports for the semi-annual inspections he performed on the Kidde HDR 25DC system at Banner Beef for the three years prior to the fire supports the inference that he failed to retain copies of the inspection reports in his records. However, Mr. Cabrera's testimony that he always prepared the necessary reports is uncontroverted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Fire Marshall enter a final order: Finding Hector Cabrera and A Fire Prevention Company guilty of having violated Sections 633.061(9), 633.065(1)(c), 633.065(2), 633.071(1), and 633.162(4)(c) and (e), Florida Statutes (2000), as well as Rules 4A-21.302 and 4A-21.304(1) and (2), Florida Administrative Code; and Suspending the licenses and permits of Hector Cabrera and A Fire Prevention Company for a period of two years, pursuant to Section 633.162(1) and (4), Florida Statutes (2000). DONE AND ENTERED this 25th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2002.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated July 23, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent filed an application for fire safety inspector certification on or about March 4, 1992. One of the questions on the application for fire safety inspector certification posed the following: Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude? Respondent answered the foregoing question by marking the space before "NO." On or about March 8, 1989, Respondent was charged by information issued through the State Attorney's Office in Lake County, Florida, with aggravated assault. Aggravated assault is a felony. On or about June 2, 1989, the information referenced above was amended but continued to allege aggravated assault. On June 8, 1989, the Respondent entered a plea of nolo contendere to the offense of aggravated assault and was placed on probation for a period of three years. Adjudication of guilt was withheld at that time. Subsequently, the Respondent was discharged from probation and the proceedings in the criminal case were terminated. Respondent had completed his probation at the time his application for certification as a firesafety inspector was made. Respondent is currently certified as a firesafety inspector, certificate number FI-66318. Additionally, Respondent is employed as a firefighter with the Reedy Creek Fire Department. Subsequent to the receipt of Respondent's application for certification, the Department requested information from the Florida Department of Law Enforcement and the Federal Bureau of Investigation regarding Respondent's criminal record. The information received from those sources led to the discovery of the facts addressed in paragraphs 3, 4, 5, and 6 above and the initiation of these proceedings.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's certification as a firesafety inspector. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4921 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802 Daniel T. Gross Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
